State of Tennessee v. Ugenio Ruby-Ruiz ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 13, 2015
STATE OF TENNESSEE v. UGENIO RUBY-RUIZ
Appeal from the Criminal Court for Davidson County
No. 2011C2109 Steve R. Dozier, Judge
No. M2013-01999-CCA-R3-CD - Filed May 12, 2015
Defendant, Ugenio Ruby-Ruiz, was indicted by the Davidson County Grand Jury in a 25-
count indictment charging him with five counts of soliciting sexual exploitation of a minor;
six counts of aggravated sexual battery; ten counts of rape of a child; one count of especially
aggravated sexual exploitation of a minor; two counts of rape; and one count of solicitation
of a minor. At the request of the State, the trial court dismissed one count of rape of a child;
the solicitation of a minor count; and two counts of sexual exploitation of a minor.
Defendant was convicted by a jury of the remaining offenses. Following a sentencing
hearing, Defendant received a total effective sentence of 121 years. In this appeal as of right,
Defendant contends that: 1) the trial court erred in ordering consecutive sentencing; 2) that
Defendant’s sentence is unjustly deserved in relation to the seriousness of the offenses; and
3) that the evidence was insufficient to support his convictions. Having reviewed the briefs
of the parties and the entire record, we conclude that Defendant has waived review of his
convictions for sufficiency of the evidence. We further conclude that the trial court did not
abuse its discretion in ordering consecutive sentences. Accordingly, we affirm the judgments
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and R OBERT L. H OLLOWAY, J R., JJ., joined.
Ivan Lopez-Hernandez, Nashville, Tennessee, (on appeal); Dawn Deaner, District Public
Defender; Aimee Solvay and Katie Weiss, Assistant Public Defenders, (at trial), for the
appellant, Ugenio Ruby-Ruiz.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick,
Assistant District Attorney General, for the appellee, the State of Tennessee.
OPINION
Facts
We will refer to the minor victim in this case by her initials, A.M. She testified that
she was 15 years old at the time of trial. Defendant was her stepfather, and she called him
“dad.” She lived with her mother, her siblings, and Defendant. A.M. testified that Defendant
began sexually abusing her when she was eight or nine years old.
A.M. testified that on one occasion, she walked in on Defendant watching
pornography on television. She saw Defendant sitting on the couch, and he was
masturbating. She testified that Defendant told her to watch it with him, but she went to her
bedroom instead. Defendant followed her. She testified that Defendant touched her “private
parts” over her clothing. A.M. recalled another incident when she and Defendant were in
Defendant’s bedroom. She testified, “I guess he just felt like doing it. And like – I guess he
just felt like having sex so he told me if I wanted to. And I guess I just didn’t want to argue
so I just let him.” She agreed to have sex with Defendant and unclothed herself. She
testified that Defendant penetrated her anally. A.M. specifically remembered the occasion
because her mother came home from the grocery store during the incident, and she quickly
dressed herself. She testified that Defendant had previously had anal sex with her. She
testified that the first time it hurt, and Defendant told her that it would not hurt the next time.
A.M. recalled another incident in the living room when Defendant was watching
pornography. She saw “half-naked” girls dressed as clowns touching each other’s private
parts. She testified that she sat on the couch beside Defendant, and Defendant began
touching her private parts over her clothing. She testified that Defendant was touching his
penis, and he asked her to touch his penis. Defendant then ejaculated. A.M. testified that
Defendant wiped semen off his penis with a paper towel. She testified that Defendant had
wiped “sperm” off his penis with a paper towel on several other occasions.
A.M. testified that Defendant also touched her private parts on several occasions in
her bedroom, but she did not recall any specific incidents. A.M. recalled that Defendant
touched her private parts over her clothing and under her clothing. Defendant would
sometimes put his hand under her clothes.
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A.M. testified that on occasions when she “would deny him” sex, Defendant would
put his penis in her mouth. Defendant also put his mouth on her breasts. A.M. testified that
when her family moved to “the yellow house,” Defendant was having sexual encounters with
her “two times a week.” A.M. recalled the first time Defendant tried to have vaginal
intercourse with her. She testified that she and Defendant were the only people in the house.
A.M. was laying on Defendant’s bed. Defendant told her to take her clothes off because “he
wanted to stick it in [her] vagina.” She told Defendant that it hurt, and Defendant told her
that it would only hurt the first time. A.M. testified that she cried. She testified that her
mother arrived home, and A.M. ran to the bathroom because she was bleeding. She testified
that her mother believed A.M.’s menstrual cycle had started because she was bleeding.
A.M. recalled another occasion Defendant penetrated her vaginally. She testified that
she was watching television in Defendant’s bedroom while she waited for her mom to return
home from work. Defendant told her that he wanted “to do it again[,]” and A.M. refused
because her mother would be home soon. A.M. testified, “he told me it was going to be
quick. So I just got tired of saying no because I know he wouldn’t understand.” A.M.
removed her clothes and spread her legs open. Defendant tried to put his penis in her vagina,
and A.M. told him to stop because it hurt. She testified, “I told him, no, because it did hurt
and he did it anyways. I guess he didn’t care.” She believed that she was in the fifth or sixth
grade at that time.
A.M. testified about one incident when they were in the living room. Defendant was
sitting on the couch, and A.M. was kneeling on the floor. Defendant put his penis in her
mouth and then ejaculated onto a piece of paper. A.M. recalled another incident when she
was taking a shower, and Defendant got in the shower with her and “showed [her] his penis.”
Defendant touched A.M.’s private parts and told her to put her mouth on his penis.
Defendant told A.M. that he would give her money if she put her mouth on his penis. A.M.
testified that the incident ended when she heard her brother in the house.
A.M. testified that “most often” the sexual encounters would happen in Defendant’s
bedroom. She testified that it happened “a lot.” She recalled another incident when she was
in fifth grade, and her friend A.T. was visiting. They were wearing their bathing suits in the
bathtub, and Defendant came into the bathroom and exposed his penis to them. A.T. left the
bathroom, and Defendant then put his penis in A.M.’s mouth. A.M. testified that on two
other occasions when A.T. was visiting, Defendant called them over to watch pornography
with him. A.M. testified that she asked A.T. not to tell anyone about the incidents.
A.M. recalled an incident when Defendant’s niece was visiting. Defendant gave his
niece money to leave the room, and Defendant then told A.M. to put her mouth on his penis.
A.M. testified that Defendant was sitting on the couch, and A.M. was kneeling on the floor.
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She also recalled an occasion when her mother went to a party, and A.M. “thought the same
thing’s going to happen that always happens when nobody’s around. . . . Have sex with
[Defendant].” A.M. testified that Defendant was mostly having vaginal intercourse with her
by that time.
A.M. testified that when she was thirteen years old, her youngest sibling was born.
A.M. recalled an occasion when she went into Defendant’s bedroom to give the baby a
bottle, and Defendant told her to give the baby to another sibling. Defendant then told A.M.
that he wanted to have sex, and A.M. took her clothes off and laid on Defendant’s bed. She
testified, “I couldn’t say anything because I would be mad because I would get so tired of it.
And so I would just let him do it, what he needed to do.” She testified that Defendant
penetrated her vaginally, and the encounter ended when her sister knocked on the bedroom
door. A.M. also recalled an incident just before her youngest sibling was born when
Defendant put his penis into her mouth while they were in the living room. She testified that
her sister watched the incident.
A.M. testified that Defendant told her that she “shouldn’t tell because he would go to
jail and what would happen to [A.M.’s] little brothers.” Defendant also told A.M. that she
was prettier than her mother and that he had sex with A.M. because A.M.’s mother would
not have sex with him. Defendant told A.M. that he loved her and he wanted to marry her.
Defendant used his cell phone to take photographs of A.M.’s naked body. He also showed
A.M. a photograph of her mother’s naked body on his phone and told A.M. that her breasts
looked better than her mother’s breasts. A.M. testified that Defendant also used his phone
to take video of her performing oral sex on him, but he did not show the video to A.M. A.M.
also testified that Defendant gave her money, a camera, and allowed her to go places in
exchange for sexual acts.
In February 2011, A.M. began running away from home. She recalled an incident on
a Sunday in March 2011. She was in the eighth grade. After having sex with Defendant,
A.M. left the house to go stay with her boyfriend, F.R., with whom she testified she had a
consensual sexual relationship. While she was staying with F.R., she told him that Defendant
was sexually abusing her. She stayed at F.R.’s house for approximately one week.
The police came to F.R.’s house. A.M. was hiding in a closet when the police arrived.
F.R. encouraged A.M. to tell the police about the sexual abuse. A.M. testified that she was
afraid of how her mother would react. She testified that she initially lied to the police about
having had sex with Defendant because she was embarrassed. She also did not tell police
that she had sex with F.R. She testified that she did not tell police that she took her clothes
off when Defendant asked to have sex with her because she did not want them to think that
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the sexual abuse was her fault. She testified that she “got tired . . . [o]f [Defendant] always
wanting to do it and taking off [her] clothes[,]” so she took her clothes off instead.
We will refer to one of A.M.’s friends who testified by her initials also. A.T. testified
that she became friends with A.M. in fifth grade. She testified that the first time she went
to A.M.’s house, she saw Defendant watching pornography in the living room. She testified
that Defendant “just looked [at A.T. and A.M.] and smiled casually.” She testified that she
saw two people having sex on television. A.T. also testified that on another occasion, she
and A.M. were in the bathtub, and they were wearing bathing suits. Defendant got into the
bathtub with them. Defendant was wearing underwear. Defendant asked A.M. in Spanish
to give him oral sex, and he removed his underwear. A.T. left the bathroom. A.M. told A.T.
not to tell anyone about the incident because her mother would not believe her and Defendant
would go to jail. On another occasion, Defendant called A.T. and A.M. into his bedroom.
Defendant was watching pornography and masturbating under the covers. Defendant asked
A.M. to sit with him on the bed, and she agreed. A.T. stopped visiting A.M.’s residence
when she was in the sixth grade because her family moved, and she changed schools. She
also testified that her mother was not comfortable with Defendant watching her.
F.R. testified that he and A.M. began dating when A.M. was 13 years old. F.R. was
16 years old. He testified that in March 2011, he and A.M. were driving to a friend’s house.
A.M. was being unusually quiet. F.R. asked A.M. if Defendant had sexually abused her, and
A.M. answered affirmatively. A.M. asked F.R. not to tell anyone because she was afraid “her
family [wa]s going to fall apart.” A.M. stayed at F.R.’s house the following week until
police came to his house looking for A.M. F.R. admitted that he had been adjudicated
delinquent for theft and aggravated burglary.
Detective Jeff Gibson testified that A.M.’s mother reported her as a runaway in March
2011. Detective Gibson located A.M. at F.R.’s father’s house. He found A.M. hiding in a
closet. She was crying and “very passionate about not wanting to go home.” A.M. disclosed
sexual abuse to another officer, and Detective Mayo contacted the sex crimes division.
Detective Jason Mayo was assigned to investigate the allegations in this case. Detective
Mayo interviewed A.M. Based on his interview of A.M., he arranged for a forensic
interview at the Child Advocacy Center. Detective Mayo contacted A.M.’s mother. A.M.’s
mother and Defendant arrived at the police station. Detective Mayo then interviewed
Defendant. Defendant initially denied that he had touched A.M. or had sex with A.M.
Defendant then told Detective Mayo that he had sex with A.M. one time but that A.M. had
initiated it. Detective Mayo requested that another officer search Defendant’s cell phone.
Detective Chad Gish searched Defendant’s phone for photos of A.M. and her mother.
Detective Gish found a photo of a woman’s breasts on Defendant’s phone, but he did not find
any nude photos of A.M.
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Reda Williams, a home healthcare provider, testified that she provided care for
Defendant’s special needs son. She began working with the family in 2010, and she worked
with the family for approximately one year. She testified that she was at the residence four
or five days per week from approximately 3:00 p.m. until 9:00 or 11:00 p.m. and on the
weekends as needed. Ms. Williams testified that she never saw Defendant watching
pornography or behaving inappropriately.
Analysis
Sufficiency of the evidence
Defendant contends that the evidence is insufficient to support his convictions.
The State responds that Defendant has waived this issue by failing to cite to the record in the
argument section of his brief. Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure
requires “citations to the authorities and appropriate references to the record.” Otherwise,
the issue may be considered waived. State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim.
App. 1988); see also State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997).
We observe that the statement of facts and argument sections of Defendant’s brief
provide absolutely no references to the record. We further observe that Defendant’s
argument is inadequate in other ways as well. Defendant challenges the sufficiency of the
convicting evidence for all 20 counts for which he was convicted; however, Defendant does
not challenge the sufficiency of the evidence as to any element of any offense for which he
was convicted. Defendant’s entire argument regarding the sufficiency of the evidence as to
his twenty convictions is as follows:
The count’s [sic] of the indictment are alleged to have occurred
during the course of eight years. The Defendant was convicted based solely
on the victim’s testimony. The victim’s testimony was never corroborated.
Only two of the counts were ever corroborated.
The first one was when the victim and her friend were in the shower
at the victim’s house. During this incident the victim’s friend did
corroborated [sic] in part the victim’s testimony. Another count was when
the victim and her friend caught the Defendant masturbating in his room.
Outside of these two counts, there was no other corroborative
evidence.
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During trial, the victim and members of the Metro/Nashville Police
Department testified that the victim had a huge propensity for dishonesty.
The issue of the victim’s virginity was at issue. By the time that the
victim was examined to determine if she was a virgin, she testified that she
had already been sexual active with her boyfriends.
Notwithstanding waiver of the issue, we conclude that the evidence is sufficient to
support Defendant’s convictions. We note that our supreme court has stated that “it has long
been the rule in our state that the uncorroborated testimony of a minor victim may be
sufficient to sustain a conviction for forcible or coercive sex offenses such as simple rape.”
State v. Collier, 411 S.W.3d 886, 899 (Tenn. 2013); see also State v. McKnight, 900 S.W.2d
36, 48 (Tenn. Crim. App. 1994) (holding that corroboration of minor victims’ testimony not
necessary to support a conviction for rape), abrogated on other grounds by State v. Williams,
977 S.W.2d 101 (Tenn. 1998); Montgomery v. State, 556 S.W.2d 559, 560 (Tenn. Crim. App.
1977) (stating that rape statute does not require that testimony of minor female victim be
corroborated to support a conviction of rape).
We agree with the State, however, that Defendant has waived this issue. Rule 10 of
the Rules of the Court of Criminal Appeals of Tennessee addresses inadequate briefs. It
states, in relevant part, “Issues which are not supported by argument, citation to authorities,
or appropriate references to the record will be treated as waived in this court.” Tenn. Ct.
Crim. App. R. 10(b). Defendant is not entitled to relief on this issue.
Sentencing
Defendant challenges the trial court’s imposition of consecutive sentencing and the
trial court’s application of one enhancement factor. Defendant asserts the total effective
sentence is unjustly deserved in relation to the seriousness of the offenses. The State again
argues that Defendant has waived review of the issue due to his inadequate brief.
Notwithstanding waiver, however, we conclude that the trial court did not abuse its discretion
in sentencing Defendant.
When a defendant challenges the manner of service of sentences, including
consecutive sentencing, the appellate court reviews the trial court’s decision under an abuse
of discretion standard with a presumption of reasonableness. State v. Pollard, 432 S.W.3d
851, 859 (Tenn. 2013). Our supreme court in Pollard held that “the abuse of discretion
standard, accompanied by a presumption of reasonableness, applies to consecutive sentencing
determinations . . . if [the trial court] has provided reasons on the record establishing at least
one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b)[.]” Id.
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at 859-62. Tennessee Code Annotated section 40-35-115(b)(5) allows for consecutive
sentencing once a defendant has been convicted of two or more “statutory offenses involving
sexual abuse of a minor” and the trial court has considered several “aggravating
circumstances arising from the relationship between the defendant and victim, the time span
of the defendant’s undetected sexual activity, the nature and scope of the sexual acts and the
extent of the residual, physical and mental damage to the victim.”
The presumption of reasonableness standard applies to “within-range sentencing
decisions that reflect a proper application of the purposes and principles of the Sentencing
Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Among the purposes and principles
of sentencing is that the imposition of consecutive sentences must be “justly deserved in
relation to the seriousness of the offense.” T.C.A. § 40-35-102(1). The length of the
resulting consecutive sentence must “be no greater than that deserved for the offense
committed.” T.C.A. § 40-35-103(2).
In sentencing a defendant, the trial court must consider: (1) the evidence, if any,
received at the trial and the sentencing hearing; (2) the presentence report; (3) the principles
of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics
of the criminal conduct involved; (5) evidence and information offered by the parties on the
mitigating and enhancement factors set out in T.C.A. §§ 40-35-113 and 40-35-114; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; and (7) any statement the defendant wishes to
make on his own behalf about sentencing. State v. Carter, 254 S.W.3d 335, 343 (Tenn.
2008) (quoting T.C.A. § 40-35-210(b) (2006)). It is also “critical” that a trial court place on
the record the enhancement or mitigating factors that the court considered, if any, as well as
the court’s reasoning for the sentence, in order to ensure fair and consistent sentencing. Bise,
380 S.W.3d at 708.
In a written Sentencing Order, the trial court considered the facts and circumstances
of Defendant’s criminal conduct. The court found as follows:
In this case, the Court finds that the sexual activity occurred in
multiple homes over a period of at least five years when the victim was
between the ages of eight and thirteen. The only way the Court knows to
sufficiently describe the abuse is to list the acts: multiple acts of anal
intercourse; penile/vaginal penetration; digital/vaginal penetration; fellatio;
sexual battery under the clothing and over the clothing; emission of semen;
vaginal bleeding; and kissing the victim on the mouth. The defendant also
photographed the victim in a sexual manner and exposed her to
pornographic material, and he even showed the victim sexual photographs
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of her mother. The victim testified that she finally told because she was
“tired of it.” The Court further finds that what abuse the defendant did
admit during interviews with police, he blamed on the victim for any sexual
conduct.
The trial court also noted that the victim referred to Defendant as “dad,” and
Defendant “use[d] his daughter for his sexual pleasure.” The court noted the residual effects
of Defendant’s abuse of the victim, finding that “as a result of defendant’s actions, the victim
did suffer and continues to suffer from mental health problems. The abuse led to the
separation of her family, and she stated in her impact statement that ‘he changed my
childhood.’”
The trial court found one applicable enhancement factor, that Defendant had abused
a position of private trust. T.C.A. § 40-35-114(14). The court found no applicable
mitigating factors. The trial court imposed the following sentences:
Count 1: [Soliciting] Sexual Exploitation of a Minor 5 years
Count 2: Aggravated Sexual Battery 10 years
Count 3: Aggravated Sexual Battery 10 years
Count 4: Rape of a Child 25 years
Count 5: [Soliciting] Sexual Exploitation of a Minor 5 years
Count 6: Rape of a Child 25 years
Count 7: Rape of a Child 25 years
Count 8: Rape of a Child 25 years
Count 9: Rape of a Child 25 years
Count 10: Rape of a Child 25 years
Count 11: Rape of a Child 25 years
Count 12: Rape of a Child 25 years
Count 13: Aggravated Sexual Battery 10 years
Count 14: Rape of a Child 25 years
Count 16: Aggravated Sexual Battery 10 years
Count 17: Aggravated Sexual Battery 11 years
Count 18: Especially Aggravated Sexual
Exploitation of a Minor 11 years
Count 19: [Soliciting] Sexual Exploitation of a Minor 5 years
Count 20: Rape 11 years
Count 21: Rape 11 years
The trial court found that consecutive sentencing was necessary to avoid depreciating
the seriousness of the offense and to protect the victim and the community as a whole. The
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court further found that consecutive sentencing was reasonably related to the severity of the
offenses “and the horrendous type of offenses committed against this minor child.” The trial
court ordered that Defendant’s sentences in counts three, four, eight, nine, fourteen, and
twenty-one be served consecutively to each other, and all other counts run concurrently, for
a total effective sentence of 121 years.
On appeal, Defendant asserts that there was no proof to support the trial court’s
finding that Defendant was in a position of trust. Defendant argues, “no proof was ever put
on that the Defendant was entrusted with the care of the victim.” Defendant also asserts that
there was no proof to support the trial court’s finding that the family was separated as a result
of Defendant’s actions. Finally, Defendant asserts that the trial court should have applied
as a mitigating factor that Defendant did not cause or threaten the victim with serious bodily
injury.
The record shows that the trial court properly considered the victim’s and Defendant’s
relationship, the time span of the undetected sexual activity, and the residual mental damage
suffered by the victim. For approximately five years, while the victim was between the ages
of eight and thirteen, Defendant, the victim’s stepfather, had repeated anal, vaginal, and oral
sex with the victim. In a victim impact statement, the victim stated that the sexual abuse had
affected her relationship with her mother and that she “d[id]n’t trust older men anymore.”
She also stated that she “felt depressed because [she] didn’t know how [her] little sister
would react when [she] tells her that her dad is in jail because of [the victim].” She also
stated that the sexual abuse by Defendant “changed [her] childhood.”
Because the trial court stated its reasons for ordering consecutive sentences, and those
reasons are amply supported by the evidence, the trial court’s decision is presumptively
reasonable. Defendant has failed to show an abuse of discretion in imposing consecutive
sentences, or that the aggregate sentence is greater than that deserved for the offenses for
which he was convicted. Furthermore, the record shows that the trial court followed the
principles and purposes of the Sentencing Act, and the record supports the trial court’s
findings. See State v. William Douglas Zukowski, No. M2001-02184-CCA-R3-CD, 2003
WL 213785, at *21 (Tenn. Crim. App., Jan. 31, 2003) perm. app. denied (Tenn., May 19,
2003) (consecutive sentences proper for five convictions of rape of a child resulting in an
effective one-hundred twenty-five year sentence involving a handicapped victim, and the
abuse occurred for two years); and State v. Frank Crittenden, No. M1998-00485-CCA-R3-
CD, 1999 WL 1209517, at *4 (Tenn. Crim. App., Dec. 17, 1999) perm. app. denied (Tenn.,
June 5, 2000) (consecutive sentencing upheld resulting in an effective sentence of
one-hundred years where the defendant was indicted on thirty-six counts of sexual abuse and
pled guilty to eight counts of aggravated rape of his minor daughter occurring over a period
of eight years). The record also supports the trial court’s finding that Defendant abused his
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position of private trust. The victim testified at trial that she thought of Defendant as a
father-figure, and she called him “dad.” We conclude that the trial court did not abuse its
discretion in sentencing Defendant. Defendant is not entitled to relief on this issue.
CONCLUSION
For the foregoing reasons, the judgments of the trial court are affirmed.
_______________________________________
THOMAS T. WOODALL, PRESIDING JUDGE
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